Citation Nr: 0923547
Decision Date: 06/23/09 Archive Date: 07/01/09
DOCKET NO. 06-14 040 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
1. Whether new and material evidence has been received to
reopen a previously denied claim of entitlement to service
connection for depression.
2. Entitlement to service connection for depression.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The Veteran served on active duty from January 1985 to June
1992.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a May 2005 rating decision from the
Waco, Texas, Department of Veterans Affairs (VA) Regional
Office (RO). A hearing before a decision review officer at
the RO was conducted in July 2006. At that hearing, the
Veteran withdrew from her appeal the issue of entitlement to
service connection for posttraumatic stress disorder (PTSD).
FINDINGS OF FACT
1. The RO denied service connection for depression in
unappealed October 2000 and May 2003 rating decisions.
2. Evidence received since the May 2003 rating decision
relates to an unestablished fact necessary to substantiate
the claim and raises a reasonable possibility of
substantiating the claim.
3. The veteran has a clinical diagnosis of depression which
first manifested in service.
CONCLUSIONS OF LAW
1. New and material evidence has been received since the May
2003 rating decision to reopen a claim for service connection
for depression. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2008);
38 C.F.R. § 3.156 (2008).
2. The criteria for entitlement to service connection for
depression have been met. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.303
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Since the Board is granting service connection for
depression, this is the greatest benefit the Veteran can
receive under the circumstances. Any failure to notify or
assist her is inconsequential and, therefore, at most, no
more than harmless error. See Bernard v. Brown, 4 Vet. App.
384 (1993).
II. Analysis
In October 2000, the Veteran requested service connection for
depression. The claim was denied in October 2000 and May
2003 because the first diagnosis of depression was in 2000.
She was notified of these decisions in May 2003 but she did
not file a notice of disagreement to the denial within one
year. Therefore, the RO decisions are final. 38 U.S.C.A. §
7105.
In August 2004, she petitioned to reopen her claim.
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, VA must reopen
the claim and review its former disposition. 38 U.S.C.A. §
5108. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
For claims filed on or after August 29, 2001, "new" evidence
is defined as evidence not previously submitted to agency
decision-makers. "Material" evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2008).
When determining whether the claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). However, lay
assertions of medical causation cannot serve as the predicate
to reopen a claim under § 5108. See Moray v. Brown, 5 Vet.
App. 211, 214 (1993).
The question of whether new and material evidence has been
received is one that must be addressed by the Board,
notwithstanding any decision already rendered by the RO. See
Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If it is
determined that new and material evidence has been submitted,
the claim must be reopened. The VA may then proceed to
evaluate the merits of the claim based on all evidence of
record, but only after ensuring that the duty to assist the
Veteran in developing the facts necessary for her claim has
been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999).
The Board finds that new and material evidence has been
received since the May 2003 rating decision. Specifically, a
January 2006 VA examination report indicates that an
inservice stressful event, the loss of her son, caused or
contributed to her current depression. Accordingly, the
Board finds that the criteria under 38 C.F.R. § 3.156(a) have
been satisfied, and reopening the claim is warranted.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131. Service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. § 3.303.
The Veteran contends that she suffers from depression due to
the loss of her infant son while she was in service. Recent
treatment records contain diagnoses of depression.
Therefore, the only issue remaining is whether the disability
was the result of service.
A private psychological report from William W. Cofield, Jr.,
Psy.D., dated in November 1992, is of record. The report
noted that the Veteran suffered from chronic depression for
the past several months, apparently secondary to the death of
her son. However, the symptoms had abated significantly and
any current symptomatology was due to characterological
traits. The examiner noted that the Veteran was a relatively
high functioning individual during service, and was expected
to establish equilibrium relatively rapidly.
A VA examination was conducted in January 2006. The VA
psychiatrist stated that the death of the Veteran's son
greatly impacted her mood and caused or contributed to her
depression.
Although the November 1992 psychological report essentially
noted that the Veteran's depression secondary to the loss of
her son during active service would not become a chronic
condition, the more recent opinion of the VA psychiatrist
noted that the Veteran has current depression due to the loss
of her son while in service. Therefore, service connection
is warranted for depression. See 38 C.F.R. § 3.303, supra.
ORDER
New and material evidence has been received, and the claim
for service connection for depression is reopened.
Entitlement to service connection for depression is granted.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs